Illegal possession is a possession on which legal sanctions are imposed because the property is not lawfully possessed. When broken into simpler words, Illegal possession or occupancy is that kind of possession which is obtained by unlawful or illegal means by the illegal occupant by producing false statements, documents or by coercion, undue influence, etc. over the rightful owner of the property so as to illegally possess the property.
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Generally, illegal possession is carried out in 2 ways
1. When some random people falsify documents and illegally occupy the property by coercion (use of force). This illegal practice is common among some since they practice this as their profession. Regrettably, sometimes certain local authorities also assist these people in such unlawful practices.
2. Such an illegal possession can also happen when a tenant refuses to vacate your premises. The most common defense used by tenants is that of adverse possession. It is advised to make a proper rent agreement before renting out your accommodation as well as acquire strong measures to avoid getting involved in such situations. These situations mostly arise when properties that are illegally occupied are left unsupervised by the caretakers, tenants with unspecified status, or properties that have been lying abandoned for years which directly makes them an easy target for such notorious people.
Adverse possession is when the rightful owner of the property loses his rights of ownership resulting from inaction on his part to get rid off a trespasser/ occupant within a statutory time period (12 years under Indian law) from his property. After the completion of the statutory limitation period for removing the trespasser/ occupant, the rightful owner is restricted from initiating any legal proceeding to gain back the possession on his property and thus, allows the trespasser to acquire the title to that property by adverse possession.
The main aim of this article is to prove that ownership without possession is absolutely meaningless since you don’t get to enjoy the fruits of the property.
Illegal possession, trespassing cases are most common when it comes to NRIs. The reasons for this are–
They don’t reside in these properties, don’t have the possession of the property at all times.
They are unable to make frequent visits, so they end up giving the possession/ control of the property to friends, acquaintances, and relatives.
Apart from this, with time many of the occupants, relatives, friends feel they own the place since there is no one to monitor and supervise the property.
Oral and unregistered agreements with tenants/ caretakers are quite common resulting in illegal possession.
Properties without caretakers and tenants which are not frequently visited by the owners themselves are a great catch for land mafia to trespass and occupy illegally.
The real meaning of possession
Possession means having the actual control over an object/ thing, whether you own it or not. However, even the person with the possession of the thing enjoys certain legal protection against third parties even if he is not the owner. This protection is given against any unlawful act of violence against the person in possession.
The rights of persons with possession come from the fact that the owner – NRIs, in this case- haven’t looked at these properties for years and they continue enjoying rights. Moreover, as mentioned earlier too, trespassers can forge documents making it difficult for them to be evicted.
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How can you avoid your property from getting illegally occupied?
The best way to regain control and restore possession of your property legally is going to the court and asking for justice. Civil court remedies are easily available where personal appearances required in the court can be controlled by competent and chosen lawyers. Legal remedies are available under the law to restore the possession of properties and even protect any third party trespassing or illegal interfering with the peaceful possession.
1. Prevention is better than cure
You should create true caretaker contracts and prepare well-defined tenancy contracts. In simple terms, you must always define the status and/ or duty of the occupant having the possession of the property.
You must not let any person retain the possession of your house for a long time. You should keep changing occupancy in the property to not let it get illegally dispossessed.
2. Actual legal measures
Under Section- 5 of the Specific Relief Act, a person who is dispossessed of his property can get possession by title.
Under Section- 6 of the Specific Relief Act, a person dispossessed may recover his right merely by proving previous possession and subsequent illegal dispossession.
Section- 145 of the Criminal Procedure Code lays down procedure where dispute concerning land or water is likely to cause a breach of peace.
A person who realizes trespassing or illegal dispossession can file a written complaint with the police against it.
A written complaint can be sent to the Superintendent of Police (S.P) of the district where the property is situated by way of registered post or by visiting the concerned police station.
In case the Superintendent of Police fails to acknowledge the complaint, a personal complaint in the concerned court can be filed through an advocate and the case can then be followed through a Special Power of Attorney when the owner cannot make his presence in the court.
Related Post: How to get your property back?
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What can a right competent lawyer offer you?
An advocate can provide full support, competence, and efficiency in court as well as clarity in legal representation to cope up with all such cases. A great number of such dedicated and competent lawyers across the country are available to handle such matters even in case of an NRI who might not be available to be physically present.